Sri Theju Kumar Vs Mallesh M

THIS CRL.RP IS FILED U/S 397 R/W 401 OF CR.PC PRAYING TO SET ASIDE THE JUDGMENT AND ORDER PASSED IN CRL.A.NO.61/2022 ON THE FILE OF THE III ADDITIONAL SESSIONS JUDGE AT MYSURU DATED 17.08.2022 AND SET

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NC: 2025:KHC:51157 CRL.RP No. 1237 of 2022

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HC-KAR

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ASIDE THE JUDGMENT AND CONVICTION ORDER IN C.C.NO.38/2019 ON THE FILE OF PRINCIPAL CIVIL JUDGE AND J.M.F.C AT NANJANGUD DATED 03.02.2022.

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE RAVI V HOSMANI

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ORAL ORDER

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Challenging judgment of conviction and sentence dated 03.02.2022 passed by Prl. Civil Judge & JMFC, Nanjangud, in C.C.no.38/2019 and confirmed in judgment dated 17.08.2022 passed by III Additional Sessions Judge, Mysuru, in Crl.A.no.61/2022, this Revision Petition is filed.

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Sri Rudrappa P., learned counsel for petitioner submitted, proceedings were initiated on a complaint filed by respondent - complainant under Section 200 of Cr.P.C. alleging that accused was known to complainant and borrowed hand loan of Rs.2,00,000/- in October, 2017, agreeing to repay same within six months and by issuing a post-dated cheque no.723204 dated 12.04.2018 drawn on Vijaya Bank, Dattagalli Branch, Mysuru, after receiving said amount. On completion of

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HC-KAR

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period and demand by complainant, accused had issued instructions to present cheque for collection. However, when presented for collection, cheque returned dishonored with endorsement ' insufficient funds '. Thereafter even when demand notice got issued by complainant returned as ' not claimed ' on 11.06.2018 and accused had failed to repay amount within time, and committed offence punishable under Section 138 of Negotiable Instruments Act, 1881 (' N.I. Act' ).

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On appearance, accused had denied charges and sought trial. Thereafter complainant examined himself as P.W.1 and got marked Exs.P-1 to P-5. Accused was thereafter explained incriminating circumstances which he denied and his statement under Section 313 of Cr.P.C. was recorded. Since accused had substantiated his defence in cross-examination of P.W.1, he did not choose to lead defence evidence. It was submitted, thereafter, trial Court passed impugned order convicting accused without proper consideration of facts and circumstances and even appeal filed there against was dismissed without re-appreciation, leading to this Revision Petition.

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HC-KAR

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It was firstly contended that accused had denied relationship of debtor and creditor with complainant. He contended that cheque in question was issued by accused to one Mahadevagowda, but misused by complainant to file impugned proceedings. It was further submitted difference in handwriting of signature on Ex.P.1 - cheque and other writings was also highlighted.

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Apart from above, fact that complainant failed to disclose particulars of lending i.e., date, time and place etc., as well as substantiate his financial capacity to pay amount, trial Court and appellate Court were not justified in passing order of conviction based merely on statutory presumption in favour of complainant. In cross-examination, to a suggestion that handwriting on cheque differed from signature, complainant had answered that he does not know. It was further submitted despite disputing financial capacity, except cheque, demand notice and postal acknowledgement, there were no other records produced to establish transaction. This was sufficient

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to upset presumption in favour of complainant and failure to comply legal position had led to impugned order, these

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NC: 2025:KHC:51157 CRL.RP No. 1237 of 2022

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HC-KAR

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impugned judgments suffered from perversity and sought for interference.

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Heard learned counsel for petitioner and perused impugned judgments and records. None appears for respondent.

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This Revision by accused challenging concurrent findings convicting accused for offence punishable under Section 138 of N.I. Act, Hon’ble Supreme Court in case of Amit Kapoor v. Ramesh Chander & Anr. reported in (2012) 9 SCC 460, has held scope for interference against concurrent findings would be limited to examining whether findings suffered from perversity or infraction of statutory provisions. Grounds urged in challenge are perversity of findings.

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Insofar as first contention about absence of proof of relationship of creditor and debtor etc., while passing impugned judgment Trial Court has taken note of contention about issuance of cheque to Mahadevagowda would admit signature of accused on cheque. Perusal of Ex.P-1 would reveal that cheque bears name of complainant. Though, there is suggestion about difference signature and other writings on

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HC-KAR

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cheque, same are denied by complainant. There is no effort on part of accused to have handwriting on cheque tested.

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Under above circumstances, Trial Court extended

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benefit of presumption under Section 139 of N.I. Act in favour of complainant. Indeed complainant has sought to rely upon Ex.P-1 cheque alone to establish transactional relationship. In view of presumption, same would be sufficient. Hon’ble Supreme Court in case of Rangappa vs. Sri Mohan reported in AIR 2010 Supreme Court 1898 has held presumption is not absolute and rebuttable and it would be open for accused to set-up probable defence, which could also be achieved in crossexamination of complainant and based on complainant's material.

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During cross-examination, except making suggestion that cheque was issued to Mahadevagouda, which is denied, nothing material is elicited to probablise denial of transactional relationship. Insofar as denial of financial capacity, at outset, it is noted that there is no reply issued to demand notice.

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HC-KAR

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That apart, in cross-examination of complainant, it is elicited that complainant is having agricultural land, that complainant is having an auto-rickshaw and was also doing business in cement. This would be sufficient to establish financial capacity.

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Insofar as absence of details of lending, perusal of examination-in-chief as well as cross-examination would reveal that complainant has stated that accused had borrowed money in October, 2017. There is no cross-examination about date or time of payment. Complainant has stated that money was paid in Nanjangud and payment was made in Rs.500/- denomination currency notes. Therefore, even contention about lack of particulars of lending would not enure to benefit of petitioner. While passing impugned judgment both Trial Court as well as Appellate Court have on appreciation of entire material on record passed order on well reasoned findings. No ground of perversity is established. Hence, Revision Petition is dismissed.

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Sd/(RAVI V HOSMANI) JUDGE

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HNM

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List No.: 1 Sl No.: 33

Sri Theju Kumar v. Mallesh M

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Sri Theju Kumar v. Mallesh M

Case brief

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